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New Russian Practice in General Average

On 30 August 2023, the Fifth Arbitrazh Court of Appeal (Vladivostok, Russia) considered the claim between TSPC JSC (charterer) and Antraks LLC (shipowner) for the recovery of losses and unjust enrichment.

The shipowner filed a counterclaim for the recovery of freight under the time charter agreement, the cost of fuel, ship oil, and satellite communication services.

The shipowner owns the vessel "Grigory Lovtsov". An agreement was concluded between him and the charterer to charter a vessel for a time (time charter) for the carriage of cargo.

On 6 December 2021, the ship left the port with cargo heading to the port of Korsakov. On 8 December 2021, the shipowner changed the voyage assignment and sent the ship to Udskaya Guba Bay. On 21 December 2021, cargo was unloaded and other cargo was loaded on board. Next, the ship headed to a new port; along the route in the Sea of Okhotsk region, the ship moved under its own power, including among the ice; since 26 December 2021, the ship drifted among the ice, and on 27 December 2021, the ship entered Engelm Bay. Believing that the vessel was at sea in ice, the shipowner issued an invoice to the charterer for the purpose of towing the vessel. The charterer paid the bill. On 4 January 2022, in the area of Utichiy Island, the ship’s captain sent a distress signal as the tugboat was out of order, and the next day the ship’s crew was evacuated by helicopter, and the ship was left at sea until spring.

The charterer notified the shipowner of the termination of the contract and demanded the return of funds paid for towing the vessel, since the towing service was not provided. In April 2022, the shipowner found the ship, provided it with a new crew and delivered it to the port of Nakhodka. The shipowner filed a counterclaim against the charterer, believing that the vessel was leased by the charterer until 24 June 2022.

The shipowner was not willing to return money transferred for towing the ship. He believed that the advance was sent to rescue the ship from captivity in the ice. However, the Сourt did not agree with the position of the shipowner and explained that this does not exclude the application of the rules on unjust enrichment, since the ship was not saved at that moment and towing services were not provided.

The shipowner believed that the principles of general average should be applied to this case; in particular, the shipowner included the costs of evacuating the ship’s crew as such expenses, and believed that they should be deducted from the advance payment for towing the ship transferred by the charterer.

The Court considered that the actions of delivering the ship to the port of Nakhodka by a new crew cannot be considered a salvage of the ship, since the ship arrived under its own power.

The Court noted that within the framework of general average, an average statement should have been drawn up and an average adjuster should have been involved. There is no evidence of these events in the case. A general average has not been established. Because of this, the court considered it correct to return the advance payment for towing the vessel and collect it from the shipowner.

Source: Case No. A51-5481/2022, 30 August 2023.
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